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Nassau County Family Law Blog

Wednesday, June 29, 2016

Divorce And The Distribution Of Your Assets

Will you lose the home that has been in your family for decades?  Who will be obligated to pay your spouse’s credit card debt?  Does your spouse have any right to a bank account in your name?  Do you have to share the accrued interest in your personal business?  These common questions often race through the minds of spouses anticipating divorce.  An attorney can answer your questions in detail, so you can feel secure in knowing which assets you are entitled to.

If you and your spouse cannot arrive at a mutual agreement, your assets will be distributed via the court’s discretion.  The word “equitable” is often misinterpreted to mean “equal,” but that is a misnomer.  The court is free to distribute property unequally, as long as it is “fair” to both parties in the eyes of the court.  This often occurs because there are certain pieces of property that cannot be split, such as a house, a business asset, or other interests that are not cash.  

In general, marital property is comprised of the assets gained throughout marriage.  The name listed on the title of a piece of property is usually irrelevant and some separate property may convert to marital property upon matrimony.  However, certain assets acquired during marriage may be deemed separate if it consists of a personal injury award, a gift, or an inheritance.  Sometimes, an active increase in the value of a piece of property is considered marital, whereas, a passive appreciation in value may remain separate.   

Upon division, courts will also consider multiple factors such as the spouses’ ages, well-being, salary, length of marriage, custody of children, tax consequences, and future financial implications.  If one of the spouses is a homemaker, then those efforts may have an actual monetary value.   Likewise, if one spouse has custody of the child or children, the custodial spouse has a greater likelihood of being awarded the marital home. 

The loss of an inheritance right, your spouse’s pension, or medical care is also valued and may affect your distributive award.   Lastly, the court may also take into account any bad faith by one of the spouses—including the act of “waste.”  This commonly occurs where one spouse attempts to deprive the other spouse of property, prior to a final divorce decree.   

 


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